July 1, 2012

Chief Justice John Roberts initially sided with the Supreme Court's four conservative justices to strike down the heart of President Obama's health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law...

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy - believed by many conservatives to be the justice most likely to defect and vote for the law - led the effort to try to bring Roberts back to the fold....The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress' power under the Commerce Clause, the sources said.

Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate.

Amazing to learn all this so quickly. Who are the sources? The phrase "specific knowledge of the deliberations" seems to imply that Crawford heard from 2 of the Justices (presumably 2 of the 4 conservatives).

Crawford tells us that Roberts initially agreed that the mandate was unconstitutional but she's a little cagey on the question of severability — that is, whether the whole legislation should fall along with that one provision, which is what the rest of the conservatives wanted. But Roberts assigned the opinion to himself and in the process of working on the opinion would have been aware of the pressure on the Court. As Crawford puts it "Roberts pays attention to media coverage" and he's "sensitive to how the Court is perceived by the public."

[By May] it also became clear to the conservative justices that Roberts was, as one put it, "wobbly," the sources said.

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

I'm guessing this source is Kennedy. I'm also guessing that what gnawed at Roberts in the process of writing was the momentousness of striking down the entire statute, especially along what would be perceived a conservative-liberal 5-4 split.

Roberts developed his taxing power argument and tried to get "at least Justice Kennedy" to join the opinion to give it a greater solidity.

There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as "arm-twisting."

Even in Roberts' opinion, which was circulated among the justices in early June, there are phrases that appear tailored to get Kennedy's vote. Roberts even used some of the same language that Kennedy used during oral arguments.

Crawford includes a lot of material here about Kennedy's approach to judging and how he's misunderstood:

Kennedy has long frustrated conservatives, because he occasionally joins with liberals to provide the key swing vote in cases involving social issues. They openly mock his writing style as grandiose and his jurisprudence as squishy - in other words, changeable and too moderate.

Why is this analysis in the article? I'm guessing it's because Kennedy expressed himself. They openly mock me.... Openly!

That's not entirely fair to Kennedy. In fact, there are underlying and consistent themes in his jurisprudence, much more so than in the jurisprudence of O'Connor....

At this point the article reads like PR for Kennedy. Why?

Kennedy... is strong on issues of federalism - and is remarkably consistent. His opinion in a 1999 case, Alden v. Maine, is considered one of the Court's finest in that area.

Oh, come on! Now she's just fawning. Considered one of the finest... by whom? There are things you can say about Alden — a case that certainly does outrage liberals — but "finest"? It is true though — and I would agree — that Kennedy has stamped his mark on the federalism cases.

Crawford's piece ends this way:

The fact that the joint dissent doesn't mention Roberts' majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.

The language in the dissent was sweeping, arguing the Court was overreaching in the name of restraint and ignoring key structural protections in the Constitution. There are clear elements of Scalia — and then, there is Justice Kennedy.

"The fragmentation of power produced by the structure of our government is central to liberty, and when we destroy it, we place liberty in peril," the dissent said. "Today's decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it."

Strong admiration for Kennedy — who really has distinguished himself over the years by connecting the structure of federalism to the protection of the liberty of the individual.

The possibility that Roberts switched was suggested by the texts of his and the conservative dissenting opinions. If something more than speculation -- that is, a real leak -- is behind this story, it's despicable. It seems VERY unlikely that Kennedy would be involved in such a thing. But perhaps a former clerk or someone on the Court staff?

I have no problem with Roberts or anyone else changing his/her mind. But it would be disappointing if the Supreme Court became part of the Washington leak culture.

I still can't figure out how it can be a tax AND be ruled on by the court at all...don't taxes have to be in place and proven to actually cause the problem suggested? If they called it a tax..then they had to refuse to hear it, right? And, wouldn't it have had to start in the House...as all taxation/budget is initiated in the House and this came from the Senate because they were working so hard to not call it a tax.

Roberts got too cute by far...you get slivers in your butt trying to ride the fence that way, and if you jump down from the fence, going to land on someone's toes regardless of the side you land on...looks like a pretty spineless move...doesn't he remember, splitting the baby in two maybe just and fair...but, it's hell on the baby!

Fortunately, this can be fixed once conservatives capture the senate and presidency.

Nothing this massive has ever been undone.

We are stuck with it for ever.

Prohibition ring any bells?

That was massively unpopular, too.

And it's illustrative to note the Canucks are dismantling their "free" healthcare, too.

PS In addition to all the other wonderful things we're learning about our "free" healthcare (like 75% of it will be borne by people making $120 grand or less), we also find out it will cost people in the military more, too. President Choom insists.

We have crossed the greater than 50% on the government dole number. Roberts didn't want to be the skunk at the garden party.

“A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship. The average age of the world's greatest civilizations has been 200 years.”

I had similar thoughts, that perhaps the reason that Scalia does not engage with Roberts is because of massive disappointment in him.

What came to mind was -- "I know it was you, Fredo. You broke my heart. You broke my heart!"

If so, might we see the follow-up to that as well, from the others on the Court -- "Fredo, you're nothing to me now. You're not a brother, you're not a friend. I don't want to know you or what you do. I don't want to see you at the hotels, I don't want you near my house. When you see our mother, I want to know a day in advance, so I won't be there. You understand?"

Certainly Roberts will NEVER AGAIN be trusted by conservatives on anything, ever.

Perhaps arrogance, hubris, a guy who was being too slick and smart by half in thinking that he had found this brilliant way of appeasing everyone, but merely earned their disgust with such flimsy justifications.

Despite all the focus on Roberts, i think a closer look at what the liberal justices agreed to is much more interesting.

The court's liberal bloc agreed to limitations in the commerce clause, to restrictions on Federal strings on Federal moneies, and - in a direct rebuke to the President's assertions, to defining the "penalty" as a "tax."

Perhaps the media should be exploring the assent of the liberals in the majority with a bit more vigor - that, I think, is the real story here.

I'd appreciate some explanation of what makes that so wonderful or delightful or whatever the hell you called it, Althouse.

There are only two possibilities:

One, that Roberts wanted to split the middle and preserve the ACA while rejecting just the mandate; but the other 4 conservatives saw that there is no severibility clause in the 2400 pages and they wanted to rule on the law as written, and not on how Roberts wished it had been written. So he jumped ship.

Or two, that he listened to the liberal pundits who threatened to shit on him and the court in the history books, and knuckled under cravenly.

Is there another plausible explanation? Because neither of these, where Roberts had to reason backward from his politically calculated conclusion with contorted arguments, is particularly wonderful in any way, other than perhaps as an elaborate and very costly piece of Althousian fan-fic performance art.

Seriously: If you ever go on blog sabbatical, you could have Roberts fill in. He could have titled his opinion "How Kennedy lost me" or "Let's take a closer look at those torts."

Fortunately, this can be fixed once conservatives capture the senate and presidency

How do the Senate and president change Supreme Court precedent?? Only the Court can change its own precedent, including this astounding unlimited power of taxation, that any and all legislation, no matter how violative of a person's liberty, can be upheld if only the target is required to pay money to the government if he does not do as the government demands.

When the government has the power to impose a tax if you buy an item, and then also has the power to impose a tax if you do NOT buy that item, so that it is impossible for you to be left alone, to avoid having government on your back, then you are no longer a free person, you are a slave to the government.

No, Roberts is "impressed" by the editorial pages of the NYTimes, WaPo, etc. He succumbed to intimidation and elitist opinion. He cares more about the legacy of his court and whether or not it and he are viewed favorably by Ivy League law school academies and the "opinion makers" in the NY/DC corridor than he does about doing his job.

Nothing this massive has ever been undone.

We are stuck with it for ever.

Yes, it's massive but the bulk of the law has not gone into effect yet and it's apparatus is still well within the early planning stages and far from being ready to put into actual operation. At this point, it's mostly a matter of pulling back the regulations that have been promulgated thus far.

"It is not our job to protect the people from the consequences of their political choices."

But that IS the job of the Constitution. And that is what the Constitution did in allowing for only a LIMITED power of taxation.

And it WAS Roberts' job to faithfully apply that Constitution and not engage in specious reasoning and fraudulent statutory interpretation in order to rule that what everyone in the world (except for the Obama lawyers making a frivolous, last gasp, throw-in-the-kitchen-sink argument) knew not to be a tax was a tax, and this just moments after he himself said it was not a tax.

Roberts' pretzel-logic decision is just so transparently outcome first, reasoning second. This will be a WTF ruling for the ages.

There is nothing wrong with changing one's mind--what matters is why you changed it. If Roberts truly changed his decision because his ego was concerned about his place in history, or because he didn't want to upset the mobocracy, he really ought to resign as being found unfit for office, having violated his oath.

damikesc said... Thing is, if Roberts is going to look at if this is a tax, why not consider if this tax is even legal in the first place?

The taxation power is not absolute, not from my understanding of the law. You can't tax whatever you want (see poll taxes).

================Past courts have stated the Federal tax powers are absolute..but have not weighed 10th Amendment balances. Only by Amendment can the Feds be barred from taxes on things.

Unfortunately for your argument, in the last time Americans were ever able to Amend the Constitution on a controversial matter - it was 1962 - before the special interest groups formed that can block any Amendment that has significant organized opposition.That was 50 years ago, and it was the poll tax Amendment.

I'm convinced that Thomas is the only one of the nine that knows what the Supreme Court is for, and what the constitution is.

How long do you suppose it will be before we have five Thomases on the SCOTUS? Bear in mind that about half of all appointments will be made by Democrat presidents, and they'll always nominate hardline leftists who vote in lockstep; while about half of all Republican nominees end up being stealth liberals or squishy ninnies.

400 years, I'd guess, before the random walk of this series of incremental nudges left and right might arrive at such a destination. I don't think it will matter much by then.

Bender said...We can repeal ObamaCare tomorrow, but the liberty-killing precedent of this decision will remain with us for a long time---------------------Agreed. The Roberts 5-4 decision considered 10th Amendment and said while the Feds cannot tell the states what orders to take under the Commerce Clause - the taxation power is absolute and now extends to telling states and people what they must buy or do to avoid a tax.

On top of the existing power to tax income, profits, and whatever you buy at the Feds discretion.

Roberts enables more.There is nothing really that could stop Congress from ordering you to buy 5,000 dollars worth of new solar and green energy products a year and document that ..or pay two inner city "Green Is Good!" youths in Federal green jobs programs 1,000 to look around your house and note if you are or are not adequately Green...or pay a tax. (Unless you qualify for the low income waiver and union member waivers that would neatly fall along Democrat class, race, constituent lines. )

Years back, Daniel Patrick Moynihan made Roberts argument for gun control. Noting that the taxation powers are absolute unless Amended...anti-gunner Moynihan said tax power trumped states and 2nd Amendment rights. And we could eradicate the scourge of guns with a 10,000 dollar Federal tax on each gun purchased, swapped for other compensation 2nd hand, or as a gift tax if passed on to friends or family. With a hunder-dollar a bullet tax.

Moynihan said military, hero government employees needing guns for their jobs, cops, and private security guards protecting the likes of Moynihan's NYC Elites would be exempted. As would certain private ranchers and farmers that could prove a need to have a fiream.

If you think about the coverage of the case, you might start imagining someone in the court had tipped the WH and other sources off.

First, there was much speculation that the vote had been leaked and Obamacare had lost.Then, in the past few weeks, the pressure was turned up in the form of article after article talking about the lack of legitimacy of a 5-4 decision to overturn.

It's as if someone knew Roberts was waffling and the pressure was working- and exactly what kind of pressure was working. It was strategic, it was informed, and it worked.

SunnyJ said...... wouldn't it have had to start in the House...as all taxation/budget is initiated in the House and this came from the Senate because they were working so hard to not call it a tax.

The bill was introduced in the House as the "Service Members Home Ownership Tax Act of 2009" (H.R. 3590) by Charles Rangel (D–NY) on September 17, 2009. The Senate then gutted the bill to an empty shell of a tax bill and filled it with amendments now called the ACA.

This was part of the rules chicanery Harry Ried et al were involved in that few outside the Senate wanted to know about. It's ugly, but it's how sausage is made.

Kagan was chosen because she was supposed to be able to sweet talk Kennedy. She's sweet talking Kennedy in the press now (she'll need him for any gay marriage decisions), but I'd bet good money she was telling Roberts what Obama wanted him to hear, and telling the press what Roberts needed to hear.

My sources didn't mention any of this. In fact, my sources--nine of which have specific knowledge of the deliberations--said everyone stayed up really late watching Vampire Diaries and had one of those oh-shit-our-opinions-are-due-in-like-three-hours moments. I think that comes through in both the opinions and in the overall outcome.

The best guess is a bribe. Either that or Roberts actually likes the National Government to be run without hindrance from the founding covenants we thought were honored.

What I cannot understand is why Roberts is fool enough to believe that the National Tyrant will be greatful to him. He will be thrown out like the trash. Only strength is respected by Tyrants. Surrender only gets you brushed asided as if you were never there, and Roberts was not there.

"My speculation is that he thought about his own place in history.. how the key piece of legislation by the first African American president ..."

My God, I hope not. If I hear one more lame ass who thinks himself MLK,jr., because they want to help the little half-black kid make it in the big bad white world, I'm gonna lose my lunch.

That kind of thinking almost always hurts someone else and in this case millions of someones. Stop telling yourself that you are being brave, or principled. You are being racist, period. First, by assuming that said minority needs your help, and second, by hurting everyone else for being the wrong skin color. Just stop it!

A lot of commenters seem to miss the point that while CJ Roberts' move blocks the lower courts from ruling against the ACA, it enables Congress (specifically the Senate, since the House has already passed bills to that effect) to repeal it completely.

A lot of commenters seem to miss the point that while CJ Roberts' move blocks the lower courts from ruling against the ACA, it enables Congress (specifically the Senate, since the House has already passed bills to that effect) to repeal it completely.

One of the blessings of a judicial process that requires reasoned decision-making is that backstories like this are just entertaining fluff. The various opinions stand or fall or their individual merits, regardless of who switched, or didn't respond, or got huffy in rejection.

The theme that the four DIssenters didn't want to engage the CJ's opinion is particularly odd -- they don't have much of a choice, since it (rather than their dissent) is now the law. The whole write-up makes the SCOTUS sounds like something out of a Peanuts routine, complete with an Lucy's stomping off and taking her football to boot.

If the Rep team beats O-man this Nov, and finds a way to repeal O-care (or so much of it as they really dislike), CJ Roberts will seem more of a judicial statesman. If the Rep team fails to oust O, that will also be a verdict of sorts on O-care. Whichever way it goes, Roberts was surely right in saying that it is not the Court's business to rescue the voters from the consequences of their political choices.

Hagar said...A lot of commenters seem to miss the point that while CJ Roberts' move blocks the lower courts from ruling against the ACA, it enables Congress (specifically the Senate, since the House has already passed bills to that effect) to repeal it completely===============A lot of other commentors miss the fact that Roberts majority declared the Federal taxing power absolute - and able to reach in and regulate any aspect of The States or individuals lives if that power grab is masked as a tax of some sort.

Roberts spit on the 10th Amendment.

You don't need no stinking commerce clause if you can order States, businesses and individuals to do as you wish - under any regulation or law the Feds passed - as long as it is guised as a tax.

This is not new, BTW. The Feds intruded into the states sphere on many past occasions under taxing powers.They decided the scourge of laundanum and Mary-Jane was just like alchohol and tobacco. Pass a tax, a ridiculous tax - and the Feds had legal powers to come in and arrest and prosecute the tax scoflaws that would not pay 10,000 in taxes for a gram of opium or an ounce of pot.And added a ton of extraneous regs that businesses had to report their peoper Federal kow-towing (on wildly unrelated to taxes matters) on their business tax forms or organizing for formation forms for Federal reporting.

Or all the groups that had to list their kowtowing on non tax-related matters - on their tax-exempt forms.

Roberts legitimized further expansion of Federal powers...and Congress is the only check.So your fate is really not in your hands, your state governments, or the Courts....but on whim of some Congressional leader or Committee Head you in all likelihood never voted for who is in all likelihood from a different state, a different region of the country.

and by "episode" I mean the whole AHCA business from beginning to end.

As for the attacks on Chief Justice Roberts, I think it may be legitimate to say that his solution was "too clever by half," but so were some of the stunts John Marshall pulled in his time.

I think Roberts concluded - and that fits with the timing, I think - that Obama was right when he said that if he failed to sell the American people on his ideas, his presidency would be a one term affair.

"These are the times that try men's souls: The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value. Heaven knows how to put a proper price upon its goods; and it would be strange indeed if so celestial an article as freedom should not be highly rated." - Thomas Paine (1776)

You are all blowing this thing way out of proportion. If the nation's fate has come down to the point where it hinges upon a single vote by a single judge, then we are utterly doomed, and have been for a long time. The nation whose citizens elected Barack Obama President has problems far deeper than one man's vote can repair.

Maybe he engaged in some intellectual honesty. I don't think that he likes the law or how it was passed, but knew that in the end, he needed to do the "right". He may have "switched" because he knew that it constitutional as a tax and it could be classified as a tax due to precedent. Intellectually honesty: it's key to good government.

Lem said (sarcastically),..."Roberts was surely right in saying that it is not the Court's business to rescue the voters from the consequences of their political choices. If Pilate Roberts is just there to wash his hands, then maybe he is unfit for office."

bagoh20 said (indignantly)....bagoh20 said... "it is not the Court's business to rescue the voters from the consequences of their political choices." Since the court's very purpose is to protect voters from over reach by the people they have elected, this oft repeated line is total bullshit."

You're both wrong. It is the business of the Court to determine Constitutionality of laws. Four other justices sided with Roberts, who does not own them you know. So you lost your political birthday present on this one. Tough shit. Stop whining.

What is going to be hard to undo is the taxing power expansion. You can now directly tax someone for NOT doing something. The fig leaf is that you are giving them a credit for DOING it, but the tax is clearly a club to get them to do it.

It will take a Constitutional Amendment to undo, and to get that there will need to be a tax that annoys liberals. Buy a gun and train to use it or pay a tax, that kind of thing. Or maybe just tax them if they don't watch Hannity.

1. Nothing in the reports, NOTHING, speaks to motivation. There is NO reason whatsoever to assume that Roberts acted from anything other than his own reasoning. If you're committed to bad faith projections I have no interest in your anger.

2. Roberts did NOT switch at the last minute. No one was caught off guard. When he changed his mind he made a game attempt to persuade other justices to his multi-point resolution (in both directions).

I do find it instructive that the penalty as tax issue was debated in some detail during oral arguments. The fact that Roberts was persuaded by it may have caught the conservative block by surprise, but the argument itself was on the table.

You don't remember your bible stories well. Solomon handed the decision over to the parents--which is kind of what Roberts is telling the voters. The ones who actually do vote that it. The rest just complain without assuming any responsibility.

Pastafarian said..."How long do you suppose it will be before we have five Thomases on the SCOTUS? Bear in mind that about half of all appointments will be made by Democrat presidents, and they'll always nominate hardline leftists who vote in lockstep; while about half of all Republican nominees end up being stealth liberals or squishy ninnies."

I think most Americans want a balanced court just as they tend to prefer balance throughout the government.

You're wrong that the liberal justices are all just lockstep partisans. In this very ruling we find two of the liberal justices (Kagan and Breyer) decided to go along with the conservatives in ruling that the ACA unconstitutionally coerced states into signing up for a medicaid expansion.

So we had multiple justices engaged in political compromises. I can understand it bothers the hardcore partisans here that a conservative judge rose above his partisanship. but you'e fooling yourselves if you think those other four conservative justices aren't just as political as Roberts. We saw the week before where Scalia was including Republican talking points into an opinion, as if he spends his days listening to Rush Limbaugh.

All of the justices are political and the Supreme Court is a political institution. What bothers many Americans is when the Supreme Court becomes as hyper-partisan as the rest of our politics. Yes, we have liberal judges and conservative judges. But must they always seem like they're overly loyal to a political party? That's not the way they're supposed to be.

Fortunately, this can be fixed once conservatives capture the senate and presidency.

Yeah, sure! Or maybe the GOP is just using this issue to whip up their base, like they do with abortion.

I don't even believe Romney is sincere that he wants Obamacare repealed. Why would he be, when Obamacare is nearly identical to a state-level experiment from Governor Romney?

The Republicans had many years to reform health care. They should be happy that the way President Obama did it was with ideas he got from Republicans. Obama originally wanted a single-payer system but he compromised like the moderate he is.

And btw: It's amazing that one can scan down through thread after thread on this blog and see virtually no one who actually gives a fuck about people who need better health care in America.

Why on earth should it have been easy for the Chief Justice of the Supreme Court to toss out an entire health care bill over a mere technicality (something a great number of legal experts viewed as a frivolous challenge)? Tossing that out would mean, for example, children being denied health coverage because of pre-existing conditions.

Romney is gonna whip you partisans up into a frenzy to help him win the election. So be it. He's power hungry and he will manipulate you guys to the extent that he can. But good fucking luck trying to repeal the ACA.

"The court's liberal bloc agreed to limitations in the commerce clause, to restrictions on Federal strings on Federal moneies, and - in a direct rebuke to the President's assertions, to defining the "penalty" as a "tax." ______________________

I don't think there is anything redeeming about this decision. The liberals aren't principled about anything. They will eviscerate any "limitation" set by this case on the commerce clause the moment it presents itself.

The only saving grace about Obamacare is that if Obama gets reelected and republicans maintain control of the House or Senate, they can use Obamacare as Obama's war in Iraq. Democrats used the war funding against Bush to increase spending on other stuff. Republicans should use Obamacare to get Obama to cut everything else.

Roberts crafted a decision that pissed off both the conservatives and the liberals on the SCOTUS. Roberts's opinion seems to have carried only a minority of the justices, given the scathing concurring and dissenting opinions.

Keep hope alive! A post from Huffingtonville, by "Ed Haskell." It turns out that Roberts is not only playing chess, it's three-dimensional chess, and its dark. You know, alternate world Spock chess:

All these people praising Roberts?

Something else is going on here, and everyone is missing it. Roberts is playing a deeper, darker, and much more political, game.

Before this decision, everyone was expecting that the overturning of the healthcare legislation would give the democrats a powerful, even decisive, push going into the election. But now, surprise! It's the GOP and the Tea Party who are incensed, up in arms, and mobilizing to get out the vote. Roberts just handed them the powerful cause they needed for a truly transformative victory in November.

And what does he have to lose? If the GOP takes the Senate and the White House, not only is the health care law toast anyway, but the far right locks in control of SCOTUS for another generation! Romney will probably replace at least 2 justices, including Ginzburg, Scalia, and possibly Souter. We could end up with a 7 - 2 Tea Party SCOTUS majority.

caseym54 said...[quoting Henry] "I do find it instructive that the penalty as tax issue was debated in some detail during oral arguments."

It was discussed in passing, and none of the justices were very interested. I think that Clement got one question on it, from Ginsberg.

In truth, casey, the tax/penalty question was the very first issue brought up the court in the first minutes of the first day's arguments and occupied the court for the entire 1hr, 29mins.http://www.c-spanvideo.org/program/305055-1

Roberts was surely right in saying that it is not the Court's business to rescue the voters from the consequences of their political choices.

That would be more stirring if we didn't find out in the same week that it is the Court's business to rescue illegal aliens and guys who lie about being war heroes from the consequences of the people's political choices.

I think the next great Constitutional challenge will come when the liberals try to force health care workers to treat medicaid patients. At some point in the near future, there will not be enough doctors and health care workers willing to treat medicaid patients at the prices being offered. The government, being out of money, will have no choice but to compel treatment at some poitn in the future.

So how will that fit constitutionally. Will they be able to "tax" someone for not agreeing to enter into commerce with the government (i.e. a medicaid patient).

WIth this theory you could become a communist nation really fast. Liberals may start to feel that they need to plan how the labor supply is made up in the country. So if they feel they need more tree trimmers; or more stone cutters, they may "tax" people unless the people enter into the jobs that the eliberals want.

The taxing power is absolute. So in the future, under Robert's brilliant guidance, doctors will be forced by the federal government to treat medicaid patients (and get paid next to nothing) or else have to pay a tax (er penalty).

Perhaps, we need to start pushing for a new Constitutional Amendment. "The Federal Government cannot levy a tax on inactivity" Or "The Federal Government cannot assert as a penalty - a tax - to compel behavior."

If you don't pay (enough) interest on a mortgage, you pay higher taxes. If you don't pay enough property taxes, you pay higher taxes. If you don't contribute to charity, you pay higher taxes. If you don't birth some babies, you pay higher taxes. The Feds have long punished inactivity, they just disguised it better.

The Repubs need to point out that in addition to destroying private insurance, Obamacare will stifle medical advances with bureaucracy, corruption, and cost-cutting.

It will fall on deaf ears. I know from deaf ears. They've already been told it will destroy insurance industry and they want that and they've already been told it will stifle innovation and they've dismissed that.

Here's what I say and it's dismissed too, I say, I say, (Terry Thomas imitation) oh, there will be innovation alright. There will be all kinds of birth control innovation.

That would be more stirring if we didn't find out in the same week that it is the Court's business to rescue illegal aliens and guys who lie about being war heroes from the consequences of the people's political choices.

If you don't pay (enough) interest on a mortgage, you pay higher taxes. If you don't pay enough property taxes, you pay higher taxes. If you don't contribute to charity, you pay higher taxes. If you don't birth some babies, you pay higher taxes. The Feds have long punished inactivity, they just disguised it better.

All of this has been true for a very long time indeed. Anyone here want to dispute that? If so, I can't imagine why, on account of how truly stupid that would be.

At some point in the near future, there will not be enough doctors and health care workers willing to treat medicaid patients at the prices being offered.

Oh, I don't know. So many people in so many professions have had to reduce their rates or choose unemployment over the past 20 years, at least. Let's consider, just for starters, what the beginning wage for engineers fresh out of school was in, say 1986, and what it is now--what it's worth and all of that.

Shit has happened, and it (shit) has happened for a long time.

The other thing is: There is talk about doctors and other medical professionals all the time here, and the assumption appears to be that their compensation PLUS floating-far-above social status was ALWAYS what it has been over the past 30-35-40-odd years or so. But it *wasn't*, you know. It just wasn't, in most cases. (Any more than it was for--as additional examples--teachers, college professors, lawyers, and so forth. Again, it just wasn't.)

Bubbles. Bubbles. Bubbles. Bubbles.

They all burst. Some take more time than others, but in the end, it's what they all do.

I also think that we are being buried under regulation, and that whole number of professions are being buried under regulation. However, I also want to point out that I think that, in the case of certain professions, the professionals within them of a few decades ago embraced and either promulgated or, at the very least, enthusiastically enabled all of those controls because it happened to benefit them, as individuals, at the time and in their younger times. Smart they were, at least in terms of their own short-term interests, but not so good at what I would characterize as "implicational*** thinking." The fact that all of that stuff spun out of control ought not to have surprised them; the fact that it did is a witness to that, after they got what they wanted, they ceased to pay attention.

Years later, many of them of are screaming. But, who, really, are they to be screaming? It's not as if, back in the day, they considered themselves for one darned minute to be like everyone else. I mean: Come on. Come on! The very point was for you to be ensured to be so special! You can't seriously believe you can zoom me 'bout that, can ya?

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***implicational is not a word. I know that. But it absolutely, positively, without question SHOULD be, at least in the context of "implicational thinking." That concept grasps something we most need (and have most lacked for the longest of times). Full stop.

"PS In addition to all the other wonderful things we're learning about our "free" healthcare (like 75% of it will be borne by people making $120 grand or less), we also find out it will cost people in the military more, too. President Choom insists."

You're woefully mistaken if you believe Obamacare is some sort of government healthcare, a la Britain's NHS or similiar programs you'll find in countries around the world, so your snarky reference to it as "free" healthcare is wrong. Obamacare simply requires that Americans without health insurance buy health insurance...from private insurers. Oh yes, it does impose some requirements that the health insurers do not reject customers who have pre-existing conditions, (more and more of us all the time), but it is no way a government healthcare system.

" Oh yes, it does impose some requirements that the health insurers do not reject customers who have pre-existing conditions, (more and more of us all the time), but it is no way a government healthcare system. "

Then why is the government involved in it?

Should the unwanted child go to term I see a black market in healthcare.

But Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.

There were countless news articles in May warning of damage to the Court - and to Roberts' reputation - if the Court were to strike down the mandate. Leading politicians, including the President himself, had expressed confidence the mandate would be upheld.

Precedent is much less important than most think it is. Dem judges will gladly ignore precedent to reach the lefty decision that is their political objective. Conservative judges will gladly ignore precedent and go back to first principles (i.e. the written constitution) to derive the decision that is compliant with the written constitution.

This idea that Roberts' has defined precedents that will steer future decisions is mostly nonsense (as it should be). It is unconstitutional to amend the constitution via judges' decisions. There is a well defined process in the constitution for amending the constitution and it has nothing to do with judges' decisions.

A big part of the problem is the gross political incompetence of the GOP. ObamaCare was passed because the dems had 60 votes in the senate. Getting 60 dems elected to the senate was a herculean challenge for the dems that the GOP should have been able to prevent. Obviously the country was sick of the GOP because of Bush II but having Libby Dole run the GOP senate election process was a great way to get the dems to 60 votes in the senate. The worst enemy of the GOP is the GOP.

The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress' power under the Commerce Clause, the sources said.

Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate.

"...the four (conservative judges) joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate."

Based on their actions and words, it is obvious that the 4 conservative judges now view Roberts with contempt. The 4 liberal judges already had contempt for Roberts. In addition, the dems showed that Roberts can be intimidated so the GOP would be foolish if it did not mount its own campaign to intimidate Roberts.

The next few years are probably going to be painful for Roberts since he has no allies and plenty of enemies who will be pushing him around.

"Jonathan Gruber, one of the key architects of Romney's health reform as Massachusetts governor has pointed to the contradiction inherent in Romney saying Obamacare has hiked taxes by noting that Romney's healthcare mandate works the same way as Obama's.According to Gruber, professor of Economics at the Massachusetts Institute of Technology, the individual mandate provisions in Obamacare is virtually identical with the mandate in Romney's health bill and both have the "same basic structure."

Sloanasaurus: "Perhaps, we need to start pushing for a new Constitutional Amendment. "The Federal Government cannot levy a tax on inactivity" Or "The Federal Government cannot assert as a penalty - a tax - to compel behavior.""

Or perhaps we could draft the amendment: The Constitution is an Enumeration of Government Powers. Or: Words Have Static Meanings Which Don't Change Over Time.

But the problem is: These things are already true, it's just that the truth is ignored.

"Roberts pays attention to media coverage" and he's "sensitive to how the Court is perceived by the public."

This is the money quote and I stopped reading right there. This to me proves that Urkel's threat on national television for SCOTUS to uphold Urkelcare worked. And if Kennedy thinks that Roberts became 'wobbly' because of this, then this is a serious problem. He was with the conservative 5-4, then Urkel made his televised threat, then he switched. Coincidence? No such thing.

I think I'm going to read about it in a book how upon reflection Roberts deemed himself to be wrong in this ruling in calling a clear strike, a ball. He fucked it up, he went against his initial gut instinct and caved to Urkel and media pressure. This is not good at all.

My wife is an MD and she loves Obamacare. We don't talk about this subject. She has always been a salaried government employee of some kind. She is the medical director of a community health center right now. She has never been in private practice. I have the feeling that most doctors these days are like that.

Steve Koch said...The best hope for conservatives is for GOP governors to relentlessly push to rejuvenate federalism via lawsuits aimed to claw back power from the feds that constitutionally belongs to the states.

7/2/12 8:40 AM

They should start with the unfunded federal mandates on the state and local governments. Imagine if the 30 states who appealed the mandates in the ACA were to do the same on the unfunded mandates on the States. That would be a nightmare of the highest order for the democrats.

Come to think of it, the 7 states that do not levy state and local income taxes should challenge the ability of taxpayers in the other states from being allowed tax deductions those 7 states taxpayers aren't entitled to.

Cubanbob, I am afraid you might be right. I think Obamacare will drive the remaining private practice doctors out of medicine. My wife will probably retire before the full force of this fiasco is realized. Maybe we can medical care in Mexico.